Opinion
8635/2004.
Decided September 17, 2004.
In March 2004, plaintiff Cynthia Rodriguez commenced this action as Administratrix of the Estate of her deceased mother, seeking to recover money damages for personal injuries sustained by Irma Mendez while under the custody of defendant hospital, Mount Sinai Medical Center (also known as Mount Sinai Hospital). Plaintiff now moves for court leave to submit a belated Notice of Medical Malpractice. Defendant Mount Sinai Medical Center cross moves for a dismissal of the action pursuant to CPLR § 3012-a, on the ground it is time-barred by the statute of limitations for medical malpractice.
Factual Background
The following factual allegations are taken from the summons and complaint. On August 21, 2001, Irma Mendez was admitted to the Transplant Unit of Mount Sinai Medical Center with end-stage liver disease and end-stage renal disease on dialysis. On August 27, 2001, Irma Mendez fell onto the floor of the Transplant Unit (9C). On September 3, 2001, Irma Mendez fell again onto the floor of the Transplant Unit sustaining a blunt impact to the head. Two days later, on September 5, 2001, a CT-Scan was done on the patient. On September 22, 2001, Irma Mendez again fell onto the floor of the Transplant Unit. Reportedly, as a result of the several falls, Irma Mendez sustained severe head injuries. Ultimately, Irma Mendez loss consciousness, was placed on a ventilator, and died on September 23, 2001.
Based on these factual allegations, plaintiff Cynthia Rodriguez commenced this personal injury action on behalf of her deceased mother, Irma Mendez, by filing a summons and complaint on March 23, 2004. Plaintiff alleges numerous acts or omissions on the part of the hospital and its staff, labeling them as negligent malfeasance and nonfeasance. Presently before this Court is plaintiff's motion seeking court leave to submit a belated Notice of Medical Malpractice, pursuant to CPLR § 3406. Defendant Mount Sinai Medical Center cross moves for a dismissal of the action on the ground that this is essentially a malpractice action timed-barred by the statute of limitations for medical malpractice.
Discussion
As a threshold matter, this Court must examine the merits of defendant hospital's cross motion, seeking summary judgment dismissing the action as time-barred, since a grant of the cross motion would render plaintiff's motion academic. At the heart of defendant hospital's cross motion, for a dismissal of the action based on statute of limitations, is whether plaintiff's claims are grounded in ordinary negligence or medical malpractice. A medical malpractice action has a 2 ½-year statute of limitations pursuant to CPLR § 214-a. A negligence claim has a 3-year statute of limitations pursuant to CPLR § 214(5). This action was commenced more than 2 ½ years, but less than 3 years after the events that preceded plaintiff's demise.
"The distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two." Weiner v. Lenox Hospital, 88 NY2d 784 (1986), quoting Scott v. Uljanov, 74 NY2d 673 (1989). In Bleiler v. Bodnar, 65 NY2d 65, the Court of Appeals articulated the general test to determine whether a challenged conduct constitutes malpractice pursuant to CPLR § 214-a. In Bleiler v. Bodnar, the Court was called upon to decide whether the alleged failure of an emergency room nurse to obtain a patient's medical history could be deemed "medical malpractice" within the meaning of the statute. Answering that question in the affirmative, the court held that the limitations period established by CPLR § 214-a may apply to acts or omissions committed by individuals and entities other than physicians where those acts or omissions either constitute medical treatment or bear a substantial relationship to the rendition of medical treatment. 65 NY2d at 72; accord, Scott v. Uljanov, 74 NY2d 673 (1989). Accordingly, pursuant to Bleiler and its progeny, a court, in determining whether CPLR § 214-a is applicable to the alleged misconduct of a health care professional, will not focus solely upon the person's status, but rather on what the person did and whether medical treatment was provided. Bleiler v. Bodnar, 65 NY2d 65; Scott v. Uljanov, 74 NY2d 673. The essential question to be answered in determining the applicable statute of limitations is whether the conduct at issue constitutes an integral part of the process of rendering medical treatment to the patient. Id. For a cause of action to survive the shorter statute of limitations and continue to be viable under the longer statute of limitations applicable to negligence, the gravamen of the complaint should not be negligence in furnishing medical treatment or conduct which bears a substantial relation to the rendition of medical treatment by a licensed physician, but rather must point to a different duty. Bleiler v. Bodnar, 65 NY2d 65; Scott v. Uljanov, 74 NY2d 673. Courts must, therefore, look at the reality and essence of the action and not its mere name. Id. See also, Tighe v. Ginsberg, 146 AD2d 268, 271 (4th Dept. 1989).
Here, plaintiff has asserted a plethora of claims, against defendant hospital, as the proximate cause of the fall of the unattended patient while under the custody of the Transplant Unit. In fact, plaintiff avers about thirty claims all labeled as negligent acts or omissions. Hence, this Court is compelled to scrutinize each allegation in the complaint to determine whether any cause of action is truly a simple negligence action or rather one which sounds in medical malpractice.
In most instances, claims are readily identifiable as one type or another. For example, a claim arising from a doctor's mis-diagnosis of an illness sounds clearly in medical malpractice, see, e.g., Karasek v. LaJoie, 231 AD2d 307 (1st Dept. 1997), while a claim arising from a fall caused by a slippery condition within a hospital's premises clearly sounds in ordinary negligence. See e.g., Bing v. Thunig, 2 NY2d 656 (1957). Some claims, however, like many of the claims asserted herein, are not as obvious. While case law is not entirely consistent, compare Zellar v. Tompkins Community Hospital, 124 AD2d 287 (3rd Dept. 1986) with Staveley v. St Charles Hosp., 173 F.R.D., 49 (E.D.NY 1997), it provides useful guidance in breaking down the claims asserted in this case.
Case law has consistently held that where a party asserts a claim against a hospital for its failure to fulfill a clearly identifiable medically unrelated duty, the claim has been deemed to sound in negligence. These medically unrelated duties include such obvious administrative tasks as the maintenance of facilities and equipment, and providing a safe facility. See e.g., Alaggia v. North Shore University Hospital, 92 AD2d 532 (1983) (hospital bed not properly equipped); Gould v. New York City Health and Hospital Corp., 128 Misc 2d 328, 331 (furnishing defective equipment); Holtforth v. Rochester General Hospital, 304 NY 27, 32 (1952) (failure to provide a functioning wheelchair); McCormack v. Mt. Sinai Hospital, 85 AD2d 596 (2nd Dept. 1981) (same). Similarly, in Bleiler, supra, the Court of Appeals held that a claim of inadequate hiring amounted to ordinary negligence. Accord Megrelishvili v. Our Lady of Mercy, 291 AD2d 18 (1st Dept. 2002); DeLeon v. Hospital of Albert Einstein College of Medicine, 164 AD2d 743 (1st Dept. 1991). Likewise, a claim of ordinary negligence will encompass a situation where the hospital staff member failed to abide by a mandatory hospital rule, see Bleiler, supra; Schneider v. Kings Highway, 67 NY2d 743 (1986), or where the hospital failed to adopt or prescribe proper procedures. See Weiner v. Lenox Hill Hospital, 88 NY2d 784 (1996).
Although a claim of "negligent hiring" has been found to sound in negligence, the same cannot be said with the claims of negligent training, instruction, education and supervision of medical staff that assist in the rendition of medical treatment. See e.g. Scott v. Uljanov, 74 NY2d 673 (1989); Cullinan v. Pignataro, 266 AD2d 807 (4th Dept. 1999); Barresi v. State, 232 AD2d 962 (3rd Dept. 1996); Bates v. New York City Health and Hosps. Corp., 194 AD2d 422 (1st Dept. 1993); Perkins v. Kearney, 155 AD2d 191 (3rd Dept. 1990). The functions of training, instructing, educating and supervising of medical staff are deemed to sound in medical malpractice on the rationale that the claims are in effect a challenge to the adequacy and timeliness of the rendering of medical treatment, since such functions are an integral part of the rendition of medical treatment. Barresi v. State of New York, 232 AD2d 962. As expressed by legal commentators, with regard to the claims of negligent training, instruction and education, the courts apparently find little difference between disputing the substance of a defendant's professional assessment and disputing the defendant's intellectual tools to make such assessment. Del Gatto Alcruz, Distinguishing Ordinary Negligence From Medical Malpractice, N.Y.L.J., May 24, 1999, P. 1
A number of cases involving the similar fact pattern here the fall of an unattended hospital patient have consistently been deemed actions sounding in medical malpractice where the cause of the fall was essentially imputed to improper assessment of the patient's condition and degree of supervision. See e.g., Scott v. Uljanov, 74 NY2d 673 (1989); Smee v. Sisters of Charity Hospital, 210 AD2d 966 (4th Dept. 1994); Brath v. Kenmore Mercy Hosp., 198 AD2d 771 (4th Dept. 1993); Fox v. White Plains Medical Center, 125 AD2d 538 (2nd Dept. 1986); Zellar v. Tompkins Community Hospital, 124 AD2d 287 (3rd Dept. 1986). For instance, in Scott v. Uljanov, 74 NY2d 673 (1989), the plaintiff suffered head injuries as a result of a fall from his hospital bed. He had presented himself to the emergency room and was found to have .29 alcohol level. About 30 minutes after he had been placed in a hospital bed with the side rails up, he attempted to climb out, fell and cut his head. The Court of Appeals concluded that the action in essence questioned the "hospital's assessment of plaintiff's supervision and treatment" which was "an integral part of the process of rendering medical treatment," and, therefore, the plaintiff's claim was one of medical malpractice not negligence. Id.
Similarly, in Harrington v. St. Mary's Hosp., 280 AD2d 912 (4th Dept. 2001), a patient brought an action against the hospital after he was allegedly injured in a fall. The plaintiff was a patient at the defendant hospital's brain injury rehabilitation program. A nurse assisted him to a bedside commode, and then stepped outside, "to give him privacy." He fell, and had a convulsion while unattended. In his complaint against the nurse and hospital, the plaintiff claimed that the nurse was negligent in leaving the plaintiff unattended. The court held that the claim against the defendant sounded in medical malpractice rather than negligence, because the "essence" of the allegation was "that an improper assessment of the patient's condition and the degree of supervision required led to the subject injuries." Thus, the appellate court held that the trial court did not err in submitting the case to the jury on the theory of medical malpractice rather than ordinary negligence. Id.
Conversely, a number of cases involving the fall of an unattended hospital patient have been deemed actions sounding in negligence where the cause of the fall was attributed to a hospital's specific duties unrelated to the improper assessment of the patients condition and degree of supervision. See, e.g., Schneider v. Kings Highway, 67 NY2d 743 (1986); Halas v. Parkway Hospital, 158 AD2d 516 (1st Dept. 1987); Papa v. Brunswick Gen. Hosp., 132 A.D2d. 601 (2nd Dept. 1987); Staveley v. St. Charles Hosp., 173 F.R.D. 49 (E.D.N.Y 1997). For instance, in Schneider v. Kings Highway, 67 NY2d 743 (1986), the Court of Appeals deemed the action sounding in ordinary negligence where there was no dispute of the assessment of the patient's condition or supervision. In Schneider, the elderly plaintiff fell from her hospital bed with a lowered bed rail. The hospital had a rule that the side rail be maintained at a raised position at all times for patients over 70 years old. The Court of Appeals analyzed the case as a general negligence matter and found that the plaintiff had established a prima facie case. Id.
Here, upon an application of the aforementioned case precedent to plaintiff's summons and complaint, this Court concludes that most of plaintiff's alleged acts or omissions against defendant hospital sound in medical malpractice, albeit a scant number sound in negligence. For example, a large number of the claims sound in medical malpractice because the conduct complained of involves the assessment of plaintiff's condition or degree of supervision. See, Scott v. Uljanov, supra; Smee v. Sisters of Charity, supra; Brath v. Kenmore Mercy Hospital, supra; Fox v. White Plains Medical Center, supra; Zellar v. Tompkins Community Hospital, supra. They are as follows: 1) negligently placing plaintiff in bed; 2) failing to monitor plaintiff's action; 3) failure of primary surgeon to follow up patient postoperatively during the hospitalization; 4) allowing only a physicians assistant to follow up patient postoperatively; 5) failure of registered nurses to confer with responsible practitioners regarding patient's care and significant changes in the patient's condition; 6) failure of nurses to notify physicians of the patient's deteriorating condition and changing vital signs; 7) failure to have adequate and consistent fall prevention measurements; 8) failure to maintain proper documentation of medical evaluation after plaintiff's falls; 9) failure to put "fall precaution signs" on bed on or about September 3, 2001 and on or about September 22, 2001; 10) failure to act promptly in requesting a CT-Scan after the second fall on September 3, 2001; 11) failure to properly install, maintain, adjust, fasten, and secure the plaintiff and the plaintiff's bed.
In addition, a large number of claims sound in medical malpractice because they essentially challenge the adequacy of the supervision, training and instructions of medical staff which undertook tasks pertinent to medical treatment. See e.g. Scott v. Uljanov, supra; Cullinan v. Pignataro, supra; Barresi v. State of New York, supra. They are as follows: 1)failure to establish an objective standard of care and conduct consistent with prevailing standards or medical and other licensed health care practitioner standards of practice and conduct; 2) allowing Registered Physicians Assistants and Registered Specialist Assistants not to be supervised by attending physicians; 3) failure of the director of nursing care to develop a plan approved by the hospital for determining the type of nursing personnel necessary to provide care for all areas of the Hospital; 4) failure to have a review and evaluation of the adequacy and appropriateness of nursing care for patients consistent with general standards of nursing practice; 5) failure to have fall risk assessment and monitoring in the Transplant Unit; 6) failure to provide the patients with adequate supervision and evaluation by a registered nurse; 7) failure to have a registered professional nurse plan for the supervision and evaluation of nursing care of patient; 8) failure of quality assurance committee to administer hospital quality assurance program to ensure and identify actual problems concerning patient care and clinical performance, and to ensure and assess the cause and scope of problems; 9) failure to monitor and evaluate all action taken, and the implementation of remedial actions to ensure the effectiveness of the action taken; 10) failure to continually evaluate the appropriateness and quality of patient care particularly in the Transplant Unit; 11) failure to exercise reasonable care in the training and disciplining of the nurses; 12) failure to ensure that the medical staff was accountable to the governing body for the quality of care provided.
While the overwhelming number of claims asserted by plaintiff sound in medical malpractice (twenty-three), some claims (seven) sound in ordinary negligence. For instance, plaintiff claims that defendant hospital failed to provide 1) an adequate examining table and 2) an adequate bed. Such types of claims have consistently been found to constitute negligent performance of administrative duties. See e.g., Holforth v. Rochester General Hospital, 304 NY 27, 32 (1952) (failure to provide safe, functioning wheelchair was deemed a negligent performance of administrative act); Gold v. New York Health and Hospitals Corporation, 128 Misc 2d 328, 330 (NY Sup. Ct. 1985) (furnishing defective equipment). In addition, plaintiff claims 3) that defendant hospital failed to follow proper hospital procedure. See Bleiler, supra; Schneider v. Kings Highway, supra. Plaintiff further claims 4) that the hospital failed "to afford patients their rights as patients with the provision of the statute that govern the action of hospital, physicians, nurses and hospital personnel by the State of New York," without specifying the statutory authority. For further consideration, plaintiff must amplify her claim in the bill of particulars. Also, plaintiff asserts several claims regarding improper hiring practices. See Bleiler, supra; DeLeon v. Albert Epstein, supra; Megrelishvil v. Our Lady of Mercy, supra. First, plaintiff claims 5) that it was improper to hire Patient Care Associates to perform tasks reserved for registered nurses. Next, plaintiff questions 6) the hiring practice regarding registered nurses. Lastly, plaintiff asserts 7) that the hospital defendant failed to adequately staff the Transplant Unit. See Bleiler v. Bodnar, supra, 65 NY2d at 73; Zellar v. Tompkins Community Hospital, 124 AD2d 287 (3rd Dept. 1986).
Having held that plaintiff has raised several claims sounding in ordinary negligence, this Court rejects defendant hospital's argument that the whole action is time-barred pursuant to CPLR § 214-a. However, the aforementioned claims sounding in medical malpractice must be dismissed as timed-barred pursuant to CPLR § 214-a. Only those actions sounding in ordinary negligence were timely commenced. See CPLR § 214(5). In presenting her case, plaintiff is, therefore, limited to evidence of defendant hospital's conduct that constitute ordinary negligence. Evidence of defendant hospital's alleged malpractice is precluded by plaintiff's untimely commencement of such claims. If plaintiff can meet her burden of establishing that the hospital failed to carry out or negligently carried out any of such duties unrelated to medical treatment and that such negligence was the proximate cause of plaintiff's accidental fall, then plaintiff should prevail in her negligence cause of action.
Finally, in view of this Court's determination that plaintiff's claims sounding in medical malpractice are timed-barred by the pertinent statute of limitations, this Court finds that plaintiff's motion, seeking to submit a belated Notice of Medical Malpractice, pursuant to CPLR § 3406, is academic. The failure to comply with CPLR § 3406, which mandates the filing of a Notice of Medical Malpractice no more than sixty days after issue is joined, in an action to recover damages for dental, medical or podiatric malpractice, is irrelevant now in this case, since the only remaining viable causes of action sound in ordinary negligence. Cf. DeLeon v. Hospital of Albert Einstein, 164 AD2d 743 (1st Dept. 1991) (Failure to file Certificate of Merit, pursuant to CPLR § 3012-a, in medical malpractice action, rendered irrelevant since only remaining action sounded in negligence). Accordingly, plaintiff's motion is denied as moot.
Conclusion
For the foregoing reasons, it is hereby
ORDERED that plaintiff's motion, seeking court leave to submit a belated Notice of Medical Malpractice, is denied as moot; it is further
ORDERED that defendant hospital's motion, seeking to dismiss the action as time-barred, pursuant to CPLR § 3012-a, is partially granted but only to the extent of dismissing all claims sounding in medical malpractice, but denied to the extent the complaint asserts claims sounding in ordinary negligence.
This constitutes the Decision and Order of this Court.